IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Woods v. Gates, 2008 NSSC 358
Date: 20081015
Docket: 1201-060295
Registry: Halifax
Between:
Lana Dawn Wood
Petitioner
v.
Andrew William Gates
Respondent
LIBRARY HEADING
Judge: The Honourable Justice Leslie J. Dellapinna
Heard: October 14, 2008 in Halifax, Nova Scotia
Oral Decision: October 15, 2008
Written Decision: October 15, 2008
Subject: Application by former wife to vary the child support terms of the Corollary Relief Judgment, pursuant to Section 17 of the Divorce Act.
Summary: The parties were married in November 1993. They had two children, aged 12 and 7. They separated in October 2004 and were divorced in March 2007. Their Corollary Relief Judgment incorporated an agreement that the parties would share joint custody of the children and share parenting of the children approximately equally. The parties also agreed that child support would be based on the difference between what the husband would otherwise pay to the wife for the support of the two children and what the wife would otherwise pay to the husband if the shared custody arrangement did not exist. Because of the significant discrepancies in their income, the husband agreed to pay to the wife $1,268.00 per month in child support.
In November 2006 the former wife applied to vary child support. Because of the husband’s increased income, the child support, based on the same formula, was increased $1,506.00 per month.
The former wife now seeks to again increase the level of child support based on the former husband’s increased income and a decline in her income.
The former wife operated her own business which produced negligible income. However, in each of the four years prior to the application she had withdrawn from her RRSP between $10,000 and $14,000. She argued that her RRSP income should not be considered when calculating her contribution to the support of the children. She also asked the Court to review the amount of child support paid by the Respondent going back to when the parties first separated and asked that he be ordered to pay any deficiency between what he did pay and what the Court considers he should have paid.
Issue: Should the child support amount be varied? Should the former wife’s RRSP income be taken into account for determining the quantum of child support? Should the Court review the child support paid back to the date of the parties separation and should a retroactive award be granted? Undue Hardship, the imputing of income for child support purposes.
Result: The previous variation order was a consent order. Both parties agreed to its terms and both parties had legal advice prior to agreeing to its terms. The order was approved by the Court and was not appealed. Under those circumstances the Court was not prepared to retroactively vary the terms of the Corollary Relief Judgment or the terms of the last variation order effective on a date prior to the date of the last order.
There were, however, changes of circumstances since the granting of the last order.
The Court was not asked to change the method or formula used by the parties and their original agreement when calculating the amount of child support to be paid. The monthly amount of child support was therefore increased. The former wife’s RRSP income was considered in the calculation of child support. It was a recurring income figure over the past four years, including 2008. It is income that forms part of Line 150 and is not an adjustment contemplated by Schedule III.
The Court was also asked by the former wife to increase the level of child support based on undue hardship. The Court did not conclude that she would suffer undue hardship as a result of the level of the child support ordered.
The former Husband asked the Court to impute income to the former wife because in his view she was intentionally underemployed by continuing to operate a business that failed to produce a reasonable level of income rather than obtain employment. The Court did not impute income to the Wife. Most businesses require time to become established. If in the near future the former wife could not draw a reasonable level of income from the business it would be open to the Court at that time to reconsider that issue. Costs of $1,000.00 were ordered payable to the former Husband (to be paid within 60 days).
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.